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Davis v. United Health Services

United States District Court, W.D. Texas, San Antonio Division

January 2, 2020

SEPTEMBER DAVIS, Plaintiff,
v.
UNITED HEALTH SERVICES d/b/a MERIDELL ACHIEVEMENT CENTER, Defendant.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant United Health Services d/b/a Meridell Achievement Center's (“Meridell”) motion for summary judgment, (Dkt. 16), the accompanying briefing, (Am. Resp., Dkt. 20; Reply, Dkt. 21), and Meridell's unopposed motion to strike Plaintiff September Davis's (“Davis”) sur-reply, (Sur-Reply, Dkt. 22; Mot. Strike, Dkt. 23). After considering the parties' arguments, the record, and the relevant law, the Court grants Meridell's motion to strike, (Dkt. 23), and Meridell's motion for summary judgment.[1] (Dkt. 16).

         I. BACKGROUND

         This case concerns Davis's claims of unlawful discrimination and retaliation arising from her termination as a nurse at a residential adolescent psychiatric facility operated by Meridell. (Compl., Dkt. 1, at 1-2). Meridell employed Davis in this capacity for about 23 years. (Id. at 2). The facility “house[s] male adolescent patients, many of whom were admitted . . . for presenting high-risk signs such as suicidal ideation, violent outbursts, or sexually aggressive behavior.” (Mot. Summ. J., Dkt. 16, at 3). Davis worked at night and her duties included regularly surveying patients to ensure their safety (“rounding”). (See Id. at 3-5, 9). Her performance evaluations were “mixed, ” though, as Meridell characterizes it, she “rose through the ranks.” (Id. at 2).

         In December 2015, Davis voluntarily resigned her position as “Night Nurse Coordinator” and “focus[ed] on working as the core night nurse” in the unit in which she worked. (Id. at 3, 7-8). Her “duties were reduced accordingly.” (Id.). Davis says that “[s]he was only allowed to be scheduled for a 32-hour work week in order to avoid being able to earn additional compensation paid for work in excess of 40 hours per week that was made available to younger workers and same[-]age male counterparts” (Compl., Dkt. 1, at 2), while Meridell says that she chose to do so, that it did not reduce her pay, and that she received bonuses and a raise, (Mot. Summ. J., Dkt. 16, at 3, 7-8).

         Davis-who is approximately fifty-eight years old, (Compl., Dkt. 1, at 1), and lesbian (Davis Dep. Tr., Dkt. 17-14, at 7)-asserts that at various points during her employment, she “complained to management” about what she felt was “the differential treatment and support” afforded to younger versus older employees, as well as “negative treatment of and disdain for patients and employees whose sexual orientation was different from the majority.” (Compl., Dkt. 1, at 3). In a deposition, she explained that during a “town hall”-style meeting about “cultural sensitivity” with Meridell's then-CEO, she had said that “as a gay woman, I felt it was important to also remember to be sensitive to people that have other sexual orientation[s].” (Davis Dep. Tr., Dkt. 17-14, at 7). As Davis recalled the incident, the then-CEO “didn't really respond to the suggestion of being gay”; the “look on his face” indicated to her that he was “taken aback.” (Id.).

         In June 2019, a Meridell manager audited surveillance camera footage taken during Davis's shifts and did not see her or other staff performing their rounding duties. (Id. at 3-4). The footage showed Davis at a desk next to her coworker, who she supervised, and who “had his feet up.” (Id. at 4). In Meridell's telling, Davis “appeared to be sleeping, ” (id. at 4-5); Davis states that she was suffering from a “sinus headache” and “would, from time to time[, ] put her head down on the desk . . . to ease the pain, ” (Compl., Dkt. 1, at 3; see also Am. Resp., Dkt. 20, at 3). According to Meridell, Davis's coworker performed his rounds “shoddily, ” and Davis herself “falsely certif[ied] that the required rounds were properly recorded and completed. (Mot. Summ. J., Dkt. 16, at 4-5). Meridell later deleted the video footage “in the ordinary course of its business” by “recording over [it] when recording a subsequent shift.”[2] (Am. Resp., Dkt. 20, at 3).

         On June 12, 2018, Meridell managers called Davis to “discuss their findings.” (Mot. Summ. J., Dkt. 16, at 5). They explained what they believed the footage showed. (Compl., Dkt. 1, at 3-4; Mot. Summ. J., Dkt. 16, at 5). The parties explain what happened next differently. As Davis tells it:

Because she had put her head down on the desk, the managers concluded that [Davis] had been sleeping on the job and terminated her employment. [Davis] attempted to explain that she had been ill, suffering from a severe sinus headache, but was not sleeping. The managers would not listen to her explanation, but made it clear by their tone of voice that they had been looking for an excused [sic] to fire her, and were determined to do so, regardless of the truth.

(Compl., Dkt. 1, at 4). Meanwhile, Meridell says that while Davis “initially defended herself, ” as the conversation progressed, she “seemed shocked, ” “eventually confessed ‘I own it, I own it, '” and “apologiz[ed] for ‘putting her patients' safety at risk.'” (Mot. Summ. J., Dkt. 16, at 5 (quoting Chaumont Aff., Dkt. 17-1, at 4-5; Pontious Aff., Dkt. 17-13, at 4)). In a subsequent call, Meridell “informed [Davis] that [it] had decided to terminate her employment.” (Id. at 6). Meridell alleges that “Davis explained that she believed Meridell's problem with her was her sexuality ‘and the fact that she is open about it.'” (Id. (quoting Chaumont Aff., Dkt. 17-1, at 5; Pontious Aff., Dkt. 17-13, at 4)). Meridell's managers told Davis that she could “file a complaint with corporate” and that they were “terminating her for ‘multiple violations of policy, falsification of records, and her failure to properly supervise the patients.'” (Id. (quoting Chaumont Aff., Dkt. 17-1, at 5)).

         Chaumont filed her complaint in this case on December 17, 2018. (Dkt. 1). She alleges that by terminating her, Meridell unlawfully discriminated against her because of her age and sexual orientation and retaliated against her for complaining about perceived differential treatment because of those characteristics. (Id. at 4). In doing so, she argues, Meridell violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), (d), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (“Title VII”), their corresponding Texas statutes, Tex. Labor Code §§ 21.051, .055, and a treatment-facility-specific whistleblower statute, Texas Health & Safety Code § 161.134. (Compl., Dkt. 1, at 4-5).[3] Meridell timely filed its motion for summary judgment, (Dkt. 16; see Order, Dkt. 14, at 1).

         II. MERIDELL'S UNOPPOSED MOTION TO STRIKE DAVIS'S SUR-REPLY, (SUR-REPLY, DKT. 22; MOT. STRIKE, DKT. 23)

         A. Legal Standard

         Under the local rules, a party may file a reply in support of a motion, but “[a]bsent leave of court, no further submissions on the motion are allowed.” W.D. Tex. Loc. R. CV-7(f). Sur-replies are “‘highly disfavored' and permitted only in ‘extraordinary circumstances,' such as when necessary to respond to new issues, theories, or arguments raised for the first time in a reply brief.” Manchester Texas Fin. Grp., LLC v. Badame, No. A-19-CV-00009-LY, 2019 WL 4228370, at *1 n.1 (W.D. Tex. Sept. 4, 2019) (quoting Luna v. Valdez, 2017 WL 4222695, at *6 (N.D. Tex. Sept. 21, 2017)). Essentially, “[t]he purpose for having a motion, response, and reply is to give the movant the final opportunity to be heard. A sur-reply is appropriate by the non-movant only when the movant raises new legal theories or attempts to present new evidence at the reply stage.” Racetrac Petroleum, Inc. v. J.J.'s Fast Stop, Inc., No. CIV.A. 3:01-CV-1397, 2003 WL 251318, at *18 (N.D. Tex. Feb. 3, 2003). When the nonmoving party does not “challeng[e] any alleged newly-presented legal theories” raised by the movant in its reply, and “simply wants an opportunity to continue the argument, ” a sur-reply is inappropriate. Id.

         B. Analysis

         Meridell argues that Davis's sur-reply, (Dkt. 22), “does not identify any genuine issue of material fact” and instead “simply regurgitates [Davis's] assertion that she was not sleeping on the job.” (Mot. Strike, Dkt. 23, at 1). Meridell further argues that the sur-reply does not address the basis for its motion for summary judgment, which concerns Davis's prima facie cases for her claims. (Id. at 1-2).

         The local rules provide that for responsive filings after the reply, “[a]bsent leave of court, no further submissions on the motion are allowed.” W.D. Tex. Loc. R. CV-7(f). They also allow the moving party to indicate, using a certificate of conference, that “there is no opposition to any of the relief requested in the motion, ” id. at (i), and, in an analogous context, that the Court may grant motions when they are unopposed, id. at (e)(2). Because Davis did not seek the Court's leave before filing her sur-reply, and because she is not opposed to the relief Meridell seeks, the Court grants Meridell's motion to strike her sur-reply.[4] (Mot. Strike, Dkt. 23).

         III. MERIDELL'S MOTION FOR SUMMARY JUDGMENT, (DKT. 16)

         A. Legal Standard

         Summary judgment is appropriate under Federal Rule of Civil Procedure 56 only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). “A fact issue is ‘material' if its resolution could affect the outcome of the action.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).

         The party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion[] and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he moving party may [also] meet its burden by simply pointing to an absence of evidence to support the nonmoving party's case.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544 (5th Cir. 2005). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Furthermore, the nonmoving party is required to identify specific evidence in the record and to articulate the precise way that evidence supports her claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmoving party's opposition to the motion for summary judgment. Id. After the nonmoving party has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find in its favor, summary judgment will be granted. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000). The court must view the summary judgment evidence in the light most favorable to the nonmoving party. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).

         Federal Rule of Civil Procedure 56(c)(1) provides that parties litigating a motion for summary judgment may draw on “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” In general, “[t]he court and the parties have great flexibility with regard to the evidence that may be used in a Rule 56 proceeding.” 10A Charles A. Wright, et al., Federal Practice and Procedure § 2721 (4th ed., Aug. 2019 update). Still, “the evidence proffered by the [movant] to satisfy his burden of proof must be competent and admissible at trial.” Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987)). And “the threshold issue of admissibility must be resolved before determining whether or not unresolved questions of fact exist.” United States v. Hangar One, Inc., 563 F.2d 1155, 1157 (5th Cir. 1977). Similarly, Rule 56(e) permits the nonmoving party to invoke “any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred.” Celotex, 477 U.S. at 324. Though the Supreme Court in Celotex “gave some indication that the nonmoving party's Rule 56(e) evidence might not have to be in strictly admissible form, ” the Fifth Circuit has held that “Celotex did not alter the settled law that ‘Rule 56 requires the adversary to set forth facts that would be admissible in evidence at trial.'” Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 192 (5th Cir. 1991) (quoting Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990)). Still, it is “not the district court's duty to examine whether and how [the potentially inadmissible evidence] might be reduced to acceptable form by the time of trial.” Id.

         These evidentiary rules apply to affidavits as well. See, e.g., United States v. $92, 203.00 in U.S. Currency, 537 F.3d 504, 508 (5th Cir. 2008); Tucker v. SAS Inst., Inc., 462 F.Supp.2d 715, 722 (N.D. Tex. 2006); see also 10A Charles A. Wright, et al., Federal Practice and Procedure § 2738 (4th ed., Aug. 2019 update) (citing Bd. of Pub. Instruction for Hernando Cty., Fla. v. Meredith, 119 F.2d 712, 713 (5th Cir. 1941)) (“[E]x parte affidavits, which are not admissible at trial, are appropriate at a summary-judgment hearing to the extent they contain admissible information that could be introduced as evidence at trial.”).

         B. ...


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